Pedro Segura, Jr. v. State ( 2015 )

AFFIRMED; Opinion Filed December 8, 2015.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00032-CR
PEDRO SEGURA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 14-00572-422-F
MEMORANDUM OPINION
Before Justices Evans, Whitehill, and Schenck
Opinion by Justice Evans
Appellant Pedro Segura, Jr. appeals from the judgment adjudicating him guilty of
continuous sexual abuse of a child. In two issues, appellant asserts that the trial court abused its
discretion in (1) denying his motion for new trial and (2) admitting the nurse examiner’s report.
Deciding against appellant’s arguments, we affirm the trial court’s judgment.
I. BACKGROUND
A mother discovered that her twelve-year old daughter, Monica, was being sexually
abused and called the police.1 During her forensic interview, Monica identified appellant—her
step-grandfather—as her abuser and informed the interviewer that the abuse had been ongoing
for about a year. Monica was also physically examined by a sexual assault nurse examiner
1
Monica is the pseudonym assigned to the victim in this case.
(SANE). Appellant was indicted for continuous sexual abuse of a child and a jury found him
guilty of the offense. The trial court assessed punishment and sentenced appellant to a prison
term of ninety-nine years.
II. ANALYSIS
A. Standard of Review
The standard of review of the denial of a motion for new trial or a trial judge’s decision
on the admissibility of evidence is abuse of discretion. Webb v. State, 232 S.W.3d 109, 112
(Tex. Crim. App. 2007) (motion for new trial); Tillman v. State, 354 S.W.3d 425, 435 (Tex.
Crim. App. 2011) (admissibility of evidence). Under the applicable standard, the court of
appeals does not substitute its judgment for that of the trial court, but simply determines whether
the trial court's analysis was arbitrary or unreasonable. Ford v. State, 129 S.W.3d 541, 547 (Tex.
App.—Dallas 2003, pet. ref’d).
B. The Trial Court Acted Within its Discretion in Denying the Motion for New
Trial
In his first issue, appellant argues that the trial court erred in denying his motion for new
trial because he was denied a fair and impartial trial due to juror misconduct.
1. Additional facts
On October 30, 2014, appellant filed a motion for new trial and alleged as follows:
One or more jurors in the above cause made use of evidence that was gathered
outside of the jury room and outside of the juror’s personal knowledge and
experience. Specifically, one or more jurors searched the internet for information
about the Defendant. During the course of the trial one or more jurors engaged in
communications about the evidence in violation of the Court’s instructions.
The State filed a response and argued that appellant was not entitled to a hearing because his
motion for new trial lacked an affidavit establishing juror misconduct. The State also argued that
appellant failed to show that any outside influence was received and considered by the jury. At
the hearing on December 8, 2014, the trial court agreed to hear the testimony of John Steiger, a
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juror on appellant’s trial.2 Steiger was questioned about a comment he posted on the Forney
Area Incident Scanner Facebook page regarding appellant’s arrest which stated:
I was a member of his jury. I’m glad I found the deal that says he was registered
in ‘91, because the Court didn't really do a good job this week proving that he
didn’t do it, or that he did do it, so most of us went off what our gut was saying.
Turns out we was right.
Steiger testified that he posted this comment either a day or two after the trial’s conclusion and
that he learned about appellant being a registered sex offender from one of the other comments
on the Facebook page.3 Steiger testified that he did not have any additional information on
appellant while he was a member of the jury, nor did he take any information regarding appellant
from outside the courtroom into the jury room.
Steiger was also questioned about a post he made on his personal Facebook page on the
first day of appellant’s trial which stated: “Anybody want to go to jury duty for me tomorrow? I
only sleep a little bit during it today.” In response to this posting, one of Steiger’s friends posted
“Just yell out hang’em every few seconds, and they will let you go” to which Steiger responded
with a thumb’s up symbol. Steiger testified that he did not really sleep while serving as a juror
and that he was only joking. The trial court denied the motion for new trial.
2. Analysis
Rule 606(b) of the Texas Rules of Evidence provides as follows:
(1) During an inquiry into the validity of a verdict or indictment, a juror may
not testify about any statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict or
indictment. The court may not receive a juror’s affidavit or evidence of a
juror’s statement on these matters.
2
Appellant’s trial took place from Monday, September 15, 2014 to Wednesday, September 17, 2014.
3
It appears that Steiger posted this comment in the evening of September 17, 2014, after he had been
discharged from the jury.
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(2) A juror may testify:
(A) about whether an outside influence was improperly brought to bear on
any jury; or
(B) to rebut a claim that the juror was not qualified to serve.
See TEX. R. EVID. 606(b). In analyzing the purpose of Rule 606(b), the Texas Court of Criminal
Appeals instructed as follows:
However, Rule 606(b) is not a blanket rule prohibiting all juror testimony. The
most important exception to the juror-incompetency rule is that of “an outside
influence” that is “improperly brought to bear” upon a juror. The purpose of this
exception is to allow proof of external pressures that are likely to affect the
verdict. Although not explicitly defined in Rule 606(b), this Court explained in
McQuarrie that an “outside influence” is “something originating from a source
outside of the jury room and other than from the jurors themselves.”
See Colyer v. State, 428 S.W.3d 117, 124 (Tex. Crim. App. 2014) (internal citations omitted).
Here, in this case, Steiger testified that he did not have any additional information on
appellant while he was a member of the jury, nor did he take any information regarding appellant
from outside the courtroom into the jury room. Steiger further testified that he did not learn of
appellant’s registered sex offender status until after the trial’s conclusion and after he had been
discharged from jury service. Therefore, Steiger’s Facebook comment could not have been an
“outside influence” on the jury because it was made after the jury had been discharged. In
addition, Steiger’s other Facebook comment about sleeping during jury service could not be
considered an outside influence as it was not related to any factual or legal issue at trial.
Moreover, the trial court could have believed Steiger’s testimony that he actually did not sleep
during trial. In sum, although Steiger’s comments lacked decorum regarding his jury service,
nothing about his testimony indicated that the trial court abused its discretion in refusing to grant
appellant’s motion for new trial. Accordingly, we overrule appellant’s first issue.
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B. The Trial Court Acted Within its Discretion in Admitting the SANE’s Report
In his second issue, appellant argues that the trial court abused its discretion by admitting
the SANE’s report and that the testimony should have been excluded under Texas Rules of
Evidence 403 and 802, the confrontation clause, and Crawford v. Washington, 541 U.S. 36
(2004).
1. Additional facts
Darla Hammer, a registered nurse at Texas Health Presbyterian Hospital of Kaufman,
testified at appellant’s trial. Hammer testified that she was also trained as a sexual assault nurse
examiner. The State offered the report that was included in the sexual assault kit (State’s Exhibit
Number 2) as evidence and appellant objected on the basis that the report contained hearsay.
The State argued that any statements in the report fell within the 803(4) hearsay exception
because the information was gathered to facilitate medical treatment. Outside the presence of the
jury, appellant’s attorney took the witness on voir dire and specifically objected to two sections
of the report: (1) the history of the assault based on Hammer’s interview of the victim, and (2)
the narrative portions of the report which were provided by the victim. The following exchange
took place:
Appellant’s attorney: Did he -- did you ask her questions to describe in detail how the
assault occurred?
Hammer: Yes, sir.
Appellant’s attorney: And all that information is embodied within that area of the
exhibit?
Hammer: Yes, sir.
Appellant’s attorney: Okay. Now, that information has very little to do with providing a
sexual assault exam?
Hammer: No, sir.
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Appellant’s attorney: Okay. Was this information gathered in order for you to facilitate
your taking the sexual assault exam?
Hammer: Yes, sir.
Appellant’s attorney: I’m back on the first page, where it talks about history of assault,
patient’s description of pertinent details of the assault if known by
the patient, such as the orifice, penetrated, digital penetration or
use of foreign object or oral contact by assailant or oral contact by
patient. Does other information other than that appear in your
narrative?
Hammer: Yes, sir.
Appellant’s attorney: He pulled my pants down?
Hammer: Yes, sir.
Appellant’s attorney: I could feel -- I'm having a hard time reading it. I could feel where
it was starting to hurt in the middle of my private multiple times
last year?
Hammer: Yes, sir.
Appellant’s attorney: Okay. Would you agree with me that that information is outside
what’s medically necessary in order for you to conduct this
examination?
Hammer: No, sir.
Appellant’s attorney: In fact, weren’t you interrogating the child regarding what had
happened to her?
Hammer: No, sir.
Appellant’s attorney: Were you instructed by law enforcement to gather this
information?
Hammer: No, sir.
Appellant’s attorney: Okay. Was law enforcement present when you were asking these
questions?
Hammer: No, sir.
Appellant’s attorney argued that the victim’s statements in the report constituted hearsay
and further objected under Crawford. The State argued that the exhibit was admissible pursuant
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to hearsay exception 803(4). See TEX. R. EVID. 803(4). The trial court overruled the objections
and admitted State’s exhibit number 2. The jury was then brought back in and during her
testimony Hammer was asked to read aloud the history of the assault which she had written on
State’s exhibit number 2:
The patient told me he would always touch me. One night he came home drunk.
I was laying on a pallet with my grandma. He asked her if he could lay here with
us. I guess she said yes ‘cause he, he laid there. He was scooting by me and was
touching my butt with my clothes on. He pulled down my pants a little, but where
his hand would fit in there and started touching my private, moving his fingers
around, and I could feel where, and it was starting to hurt. The middle of my
private. He was hurting or he was breathing hard, and then it continues to the
other, in my ear. He pulled down my pants further, but I kept squirming. Another
time he had whispered in my ear to come to his room. He kept calling, so I went
to see what he wanted. He had me lay down on the side of the bed with my feet
propped up in the supine lithotomy position. He got between my legs and pulled
down my pants a little. And I saw him unbutton his. I turned my head and looked
at the TV. All of a sudden I felt something warm, like he had peed on me. And it
felt hard like a rock. He kept pressing himself down on top of me. At first it was
felt on top of my private, then it slipped down and it hurt then. He put his tongue
in my mouth. He did this multiple times, more than ten. He would raise up my
shirt and lick my boobs. There was some white stuff on my panties. I would say
don't and tell him to stop, but he would say just a little longer and hush me up.
Hammer testified that this information is included in the report for the following reasons: (1) to
determine the type of penetration so she knows what type of injuries to look for, and (2) to find
out if the patient is in a safe environment or requires protection.
Later in the trial, Monica testified that the appellant began abusing her when she was
eleven years old and she described the first time in detail:
He had came [sic] home; and he was out drinking with his friend, Joe. And I saw
my grandma get up because I woke up. He asked her if he could lay on the bed
with me, my cousin Hailey, and her. And she's like yeah, lay over there by
Boobie, that’s what they -- she called me. And so he got on the bed, and then he
started like rubbing on me. And I was like no, no; and I thought he was playing
around or something, so I was like move. And then he started like trying to put
his hands in my pajama pants, and so I was like stop, move. I’m about to go get
on the couch with Elexis. He was like dog, get over here. I was like no, stop,
move. And my grandma she was the one that turned the other way, and she was
asleep. And like he started like just rubbing my butt first, and then he had pulled
me close, and he started touching on my private. And he’s like put his hands
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inside my pants, and he's was playing around with his fingers on my privates, and
in the front.
During Monica’s testimony, she described the other encounters with appellant in similar detail
and that he would touch her every time she went to his house.
2. Analysis
i) Rule of Evidence 802 analysis
Hearsay is not admissible except as provided by statute, the rules of evidence, or by other
rules prescribed under statutory authority. TEX. R. EVID. 802. Once the opponent of hearsay
evidence makes the proper objection, it becomes the burden of the proponent of the evidence to
establish that an exception applies that would make the evidence admissible in spite of its
hearsay character. Taylor v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008). There are
numerous exceptions to hearsay, including an exception for statements that are made for, and are
reasonably pertinent to, a medical diagnosis or treatment. TEX. R. EVID. 803(4). This exception
is based on the assumption that the patient understands the importance of being truthful with the
medical personnel involved to receive an accurate diagnosis or treatment. Franklin v. State, 459
S.W.3d 670, 676 (Tex. App.—Texarkana 2015, pet. ref’d). In this instance, Hammer testified
that the patient history section of the report was essential to determine the type of injuries to look
for and to find out if the patient was in a safe environment or required protection. Hammer
further testified that she spoke with Monica about the need to be truthful, open and honest during
the exam so that she could determine what treatment was needed. Accordingly, we conclude that
the trial court did not abuse its discretion in finding that the statements were admissible under
Rule 803(4).
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ii) Confrontation Clause Crawford analysis
Appellant also asserts that the evidence should have been excluded based upon the
confrontation clause as interpreted in Crawford.4 We disagree. The Confrontation Clause of the
Sixth Amendment, applicable to the states through the Fourteenth Amendment, provides that,
“[i]n all criminal prosecutions, the accused shall [have the right] to be confronted with the
witnesses against him.” U.S. CONST. amend. VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965).
In Crawford, the Supreme Court held admission of a hearsay statement made by a non-testifying
declarant violates the Sixth Amendment if the statement was testimonial and the defendant
lacked a prior opportunity for cross-examination. Wall v. State, 184 S.W.3d 730, 734 (Tex.
Crim. App. 2006). A statement is “testimonial” if it is a “solemn declaration” made for the
purpose of establishing some fact. See Crawford, 541 U.S. at 51; In re M.H.V.-P., 341 S.W.3d
553, 557 (Tex. App.—El Paso 2011, no pet.). A statement is more likely to be testimonial if the
person who heard, recorded, and produced the out-of-court statement at trial is a government
officer. See Davis v. State, 169 S.W.3d 660, 667 (Tex. App.—Austin 2005), cert. denied, 549
U.S. 1344 (2007).
Generally speaking, a hearsay statement is “testimonial” when the surrounding
circumstances objectively indicate that the primary purpose of the interview or interrogation is to
establish or prove past events potentially relevant to later criminal prosecution. Davis v.
Washington, 547 U.S. 813, 822–23 (2006); De la Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim.
App. 2008). As stated above, the statements at issue were provided to a nurse for the purpose of
medical treatment, not to further a criminal prosecution. Thus, the statements cannot be
considered testimonial in nature. Further, the declarant of the out-of-court testimonial evidence,
Monica, later testified at trial and appellant cross-examined her. As the report did not contain
4
We note that although appellant raised these issues, appellant failed to brief these arguments.
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testimonial statements and appellant had the opportunity to cross examine Monica, we conclude
that trial court did not abuse its discretion in overruling the confrontation clause or Crawford
objection.
iii) Rule of Evidence 403
Appellant next argues that even if the evidence was relevant, its probative value was
more prejudicial than probative. Again, we disagree. There is a presumption that relevant
evidence will be more probative than prejudicial. See Santellan v. State, 939 S.W.2d 155, 169
(Tex. Crim. App. 1997). Rule 403, however, allows for the exclusion of relevant evidence if its
probative value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence. TEX. R. EVID. 403. In this case, even if we had concluded that the trial
court erroneously admitted the evidence, appellant’s substantial rights were not affected. See
TEX. R. APP. P. 44.2(b). The court of criminal appeals has determined that substantial rights are
not affected by the erroneous admission of evidence “if the appellate court, after examining the
record as a whole, has fair assurance that the error did not influence the jury, or had but a slight
effect.” See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Here, any alleged
error resulting from the admission of the report is harmless because Monica later testified about
the sexual abuse described in the report. Accordingly, we overrule appellant’s second issue.
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III. CONCLUSION
We resolve appellant’s issues against him and affirm the trial court’s judgment.
/ David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
150032F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
PEDRO SEGURA, JR., Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-15-00032-CR V. Trial Court Cause No. 14-00572-422-F.
Opinion delivered by Justice Evans.
THE STATE OF TEXAS, Appellee Justices Whitehill and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of December, 2015.
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